CA Unpub Decisions

A jury convicted appellant Antonio Gonzalez Chavez of felony driving under the influence of alcohol (Veh. Code, 23152, subd. (a); count 1); in a separate proceeding, the court found true allegations that appellant had suffered three prior convictions of driving while having a blood alcohol content level of .08 percent or more (Veh. Code, 23152, subd. (b)), within the meaning of Vehicle Code section 23550; and appellant pled guilty to driving at a time his driving privilege had been revoked or suspended for driving while under the influence of alcohol (Veh. Code, 14601.2, subd. (a); count 3), a misdemeanor. The court imposed the three-year upper term on count 1. The court also found appellant to be in violation of probation in a separate case, and imposed a concurrent term in that case.
On appeal, appellant contends he was denied his rights to trial by jury and proof beyond a reasonable doubt under the United States Constitution because the trial court imposed the upper term on count 1 based on its own findings of certain aggravating factors. The People argue appellant has forfeited this claim because he did not raise it at sentencing, and that in any event, appellants challenge to the imposition of the upper term is without merit. Court affirm.

Defendant Soraya Alma Cassis appeals from her misdemeanor conviction for violation of Penal Code section 666, contending the trial court erred in denying her motion to withdraw her guilty plea. Court find the court did not abuse its discretion and affirm the judgment.

On July 25, 2006, a petition was filed pursuant to Welfare and Institutions Code section 602 alleging appellant, James G., resisted arrest (Pen. Code, 148, subd. (a)(1), count one) and possessed a billy club ( 12020, subd. (a), count two). On September 26, 2006, count one was amended to allege that James provided false information to a peace officer ( 148.9). After a contested jurisdictional hearing on November 29, 2006, the court found the allegations of the petition true. At the January 22, 2007, dispositional hearing, the court adjudged James a ward of the court and placed him on probation. On appeal, James contends section 12020, subdivision (a) does not prevent him from carrying a baseball bat for self defense and that there was insufficient evidence he violated the statute.

Appellant pled guilty to one count of carjacking (Pen. Code 215, subd. (a))[1]and one count of second degree robbery ( 211), and admitted as to each offense an allegation that he was armed with a deadly or dangerous weapon ( 12022, subd. (b)(1)). He also admitted special allegations of a prior prison term ( 667.5, subd. (b)), prior serious felony conviction ( 667, subd. (a)), and prior strike conviction ( 667, subd. (b)-(i) &
1170.12, subd. (a)-(d)). The court dismissed the strike allegation. For the carjacking offense, it imposed the upper term of nine years, with an additional one year term for the weapon enhancement and an additional five year term for the prior serious felony conviction. For the robbery offense, it imposed a consecutive one year term (one third of the midterm sentence), and four months for the weapon enhancement (one-third of the weapon enhancement). The entire term was stayed and defendant was placed on probation. When he failed to meet the conditions of probation, the court ordered execution of the previously stayed term. Appellant appeals, contending that the consecutive term imposed for the robbery offense was an unauthorized sentence that must be corrected.

Defendant Edward Lee Learn was sentenced to the aggravated term of 18 months in state prison after he entered a plea of guilty to a single charge of attempting to send harmful matter to a minor with the intent of arousing, appealing to, or gratifying the lust or passion or sexual desires of that person or of [the] minor. (Pen. Code,[1] 288.2, subd. (b), 664.) That term was doubled to three years because defendant admitted that he had a prior conviction for purposes of the three strikes law. ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)
By the time defendants timely appeal was fully briefed, our Supreme Court had held in People v. Black (2005) 35 Cal.4th 1238 (Black I) that imposition of aggravated terms under Californias determinate sentencing law (DSL) did not violate Blakely v. Washington (2004) 542 U.S. 296 (Blakely). On December 16, 2005, we filed an opinion affirming imposition of the aggravated term because Black I was binding on us as an intermediate appellate court. (People v. Learn (Dec. 16, 2005, A109084) [nonpub. opn.] (Learn I).) The judgment of conviction is affirmed.

Defendant Kenneth Alan Jorgensen appeals from the judgment of conviction entered at the conclusion of a bench trial. The trial court found defendant guilty of making a criminal threat and witness intimidation. The court sentenced defendant to an aggregate term of five years, consisting of the upper term of three years for the criminal threat offense and a consecutive term of two years for the witness intimidation offense.
On July 19, 2007, our Supreme Court issued decisions in People v. Black (2007) 41 Cal.4th 799 (BlackII), and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), responding to Cunningham. Court received supplemental briefing, and now affirm the judgment, including imposition of the aggravated sentence.
The judgment of conviction is affirmed.

Lyman Lynn Sims and Felease McLane robbed a bank and appeal their convictions on charges arising from that robbery following a jury trial. Sims argues that his convictions for attempted murder and assault with a semi-automatic weapon on an officer performing his duties must be reversed. He says jury instructions precluded the jury from considering the absence of evidence which logically would have existed had the prosecutions theory of the case been correct. McLane argues his convictions for assault with a semi automatic weapon must be reversed because there was no substantial evidence that Simss use of a semi-automatic firearm was a natural and probable consequence of robbery under the facts of this case. Court disagree, and affirm both their convictions.

Appellant Angela Bianca Chew was placed on felony probation after a jury convicted her of possessing cocaine base for sale. (Health & Saf. Code, 11351.5.) She contends the judgment must be reversed because the prosecution struck two Hispanic jurors in violation of Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler). Court affirm.

Appellant Angela Bianca Chew was placed on felony probation after a jury convicted her of possessing cocaine base for sale. (Health & Saf. Code, 11351.5.) She contends the judgment must be reversed because the prosecution struck two Hispanic jurors in violation of Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler). Court affirm.

Based on an incident in which a deputy sheriff was attacked by a pit bull while placing appellant Raheen Ahmad Hanif under arrest, a jury found appellant guilty of resisting an executive officer (Pen. Code, 69)[1] and assault with a deadly weapon or force likely to produce great bodily injury ( 245, subd. (c)). Appellant now argues insufficient evidence supports the assault conviction and raises two claims of instructional error. Court affirm the judgment.

Defendant appeals from a judgment entered on his plea of no contest. His counsel has asked this court for an independent review of the record to determine whether there are any arguable issues. (People v. Wende (1979) 25 Cal.3d 436.)
Defendant, however, waived his right to appeal from the entry of his plea and the sentence imposed. Defendant was represented by counsel at all times, and received exactly the sentence that he bargained for, which was a tremendous benefit as he faced over 50 years to life if he was convicted after trial. There are no meritorious issues to be argued on appeal. The judgment is affirmed.

Nancy Zare (appellant) fractured her wrist while taking part in a board-breaking exercise at a motivational seminar conducted by respondent Klemmer & Associates, Inc. Appellant sued, and respondent timely moved for summary judgment, asserting that appellants sole cause of action for negligence [was] barred by virtue of the express release she signed, and by the primary assumption of the risk doctrine. The trial court granted the motion, and appellant challenges that ruling. Court affirm.

Appellant Daniel Blackwood challenges the grant of summary judgment in his action to invalidate testamentary documents that left the bulk of his mothers estate to respondent Nancy Wilcox (the domestic partner of appellants deceased sister) and to appellants nephew (the son of appellants deceased sister). He argues that various procedural and evidentiary defects in respondents motion for summary judgment precluded the trial court from granting summary judgment. He also argues that there were triable issues of material fact. Court affirm the judgment.

Petitioner Curtis Lee seeks a writ of habeas corpus to compel his release from prison. Petitioner alleges that the Governor improperly reversed his grant of parole by the Board of Parole Hearings (the Board). The Governor based his decision on the gravity of petitioners crime. Because the Governors conclusion that petitioners offense was an especially grave second degree murder is unsupported by some evidence in the record, we grant the petition for writ of habeas corpus. But Court not order petitioners release. Instead, Court remand this case to the Governor for further proceedings consistent with this opinion.